June 16, 2008

Last week, The A.P. took an unusually strict position against quotation of its work, sending a letter to the Drudge Retort asking it to remove seven items that contained quotations from A.P. articles ranging from 39 to 79 words.

That would put a crimp in blogging!

On Saturday, The A.P. retreated. Jim Kennedy, vice president and strategy director of The A.P., said in an interview that the news organization had decided that its letter to the Drudge Retort was “heavy-handed” and that The A.P. was going to rethink its policies toward bloggers.

Good thinking.

“We don’t want to cast a pall over the blogosphere by being heavy-handed, so we have to figure out a better and more positive way to do this,” Mr. Kennedy said....

Still, Mr. Kennedy said that the organization has not withdrawn its request that Drudge Retort remove the seven items. And he said that he still believes that it is more appropriate for blogs to use short summaries of A.P. articles rather than direct quotations, even short ones.

“Cutting and pasting a lot of content into a blog is not what we want to see,” he said. “It is more consistent with the spirit of the Internet to link to content so people can read the whole thing in context.”

I agree that bloggers shouldn't just cut and paste most of an article when all you are doing is pointing to an article or creating a place for people to comment on it, but quoting is extremely important. Much good blogging involves going through a text line by line and critiquing the precise wording. Even when all you are doing is saying here's a good article, you need to quote it a bit to interest people and make them want to look at it.

Even if The A.P. sets standards, bloggers could choose to use more content than its standards permit, and then The A.P. would have to decide whether to take legal action against them. One important legal test of whether an excerpt exceeds fair use is if it causes financial harm to the copyright owner.....

“We are not trying to sue bloggers,” Mr. Kennedy said. “That would be the rough equivalent of suing grandma and the kids for stealing music. That is not what we are trying to do.”

The A.P. doesn’t get to make it’s own rule around how its content is used, if those rules are stricter than the law allows. So even thought they say they are making these new guidelines in the spirit of cooperation, it’s clear that, like the RIAA and MPAA, they are trying to claw their way to a set of legal property rights that don’t exist today. And like the RIAA and MPAA, this is done to protect a dying business model - paid content.

As Jarvis notes, when we blog news stories, we often have a choice of sources and we drive traffic to the sources we link. Bloggers can make AP our link of last resort — or completely boycott it. That's going to cost AP, isn't it? And if the answer is yes, that goes a long way to proving that what we are doing now is fair use.

Bloggers should not quote excessively from others’ content and when they quote it should be for a reason — to agree, disagree, comment on, recommend, correct (there can be many reasons). This is fair use and fair comment. There can be no word-count limit because it depends on the use. If I want to fisk a story, I may well quote the whole thing because I am commenting on it all. The test is reasonableness: a fuzzy test, but life is fuzzy.

Jarvis versus lawyers:

My suspicion is that it’s the lawyers who got the AP into this mess. My best advice for the AP’s executives is that they should try to practice the bloggers’ ethic of the link and quote themselves (updating their news values with one more value). My next-best advice is that they should walk down the hall and tell the lawyers to put a damned sock in it or send them off for a very long off-site on a golf course where they can do no harm. This is not going to be resolved enforcing the fine print of outmoded laws built for an extinct age. This is a constantly changing landscape that must be maneuvered with flexibility and openness. But if those lawyers continue to threaten bloggers who know more about this new age and are only practicing their appropriate ethics, I will continue to use this space to suggest where socks should go.

33 comments:

I like to quote their overwritten features, like this specimen eaten by bears and later recovered

Army Tests Soldiers in Alaskan Extremes

DELTA JUNCTION, Alaska -- The Humvee's headlights shone incredibly bright, casting daylight clarity on a line of spruce trees, every needle standing out in stark contrast to the dark night of Alaska's interior.

What I don't understand - and this goes for the NYT's now-defunct wall as well - is why an organization that lives or dies by being read and taken seriously would want to be taken less seriously and read less often.

On the other hand, having read the sort of illiterate dreck that passes for reporting by the Associated Press for several years, I have to wonder if perhaps they're better off that way.

News organizations pay hard money for the right to use AP content. They sign agreements regarding how that content is used. The reason for this is that those organizations make money off the use of AP material.

If you, as a blogger, derive any sort of income from the use of that AP material in your blog, then the AP has the right to have at you for the use of their material in your blog.

If you just have a vanity blog, and do not derive income from it, then that use should fall under the fair use laws.

AP may be engaged in avoiding their problem of bias and slumping sales by setting up a diversion. Blame those with the temerity to actually critique AP's product and threaten copy right infringment and violation of nebulous standards.

So-called 'Fair Use' questions could be a smoke screen to enhance their image. Pretending that there is value by defending content does not make the content credible.

With the AP, it's impossible to know if the story is true, false, or a mxture of veracity with mendacity, until someone else has verified it. So why bother quoting them in the first place? It's like the National Enquirer publishing something. Is it true, or another alien-meets-the-President concoction?

Looks more like a bunch of bloggers in techno-pirouette whining and crying as if blogs and blogging are sancta sanctorum against press (mediocre or otherwise) trying “to claw their way to a set of legal property rights that don’t exist today.”

Let’s not get lawyers involved. But, for those of us too stupid to know, these legal rights don’t exist.

That’s the fast track for keeping lawyers at bay? Jarvis on the legal lam against being on the legal lam?

Ah, er .. something about law as an intellectual activity at that very edge, that is, law as novella at the creative and radical edge of such gray horizons (gray: whether/how rights exist) and law as opportunity - for opportunists from legal pimps (anything for hire) to legal purists (advancing originality or radicalism on blogs more mediocre than AP wires) in the semi-free market place of free thought.

With no shortage of clawing. All around.

For those who feel that something close to the better half of clawing self-expression happens on blogs, from where I sit, to make out the AP as Boogeyman v. Blogosphere feels a little more like Lilliputian legal lemmas over breaking eggs. Rather than breaking stories. If the AP drudges Drudge to make an example to the blogosphere, then whether that’s an AP tactical mistake is anybody’s guess.

Whether there’s a factual issue about the volume of uncredited use of hard-earned AP stories (mediocre or not) won’t go away just because Jarvis dumps like Rhett on Scarlet, “[Frankly], I don’t really give a damn what your guidelines are.” I’d like to see those facts. More so than Jarvis’ low brow high road of self-righteous indignation.

I once had a newbie, wannabe stringer who, on deadline, turned in a 28-column-inch article--on some sort of town meeting, no less--entirely without punctuation, paragraph breaks or caps at the start of sentences. (I kid you not. Shortest stringer tryout in history, defeating even my patience as a desk editor.)

It was easier to hack my way through that "prose" than it is to make heads or tails of your comment, and that's saying something.

It would be interesting to know the stand of some of the members of the AP, which, it's important to understand, is a news cooperative organized as a not-for-profit. It is "owned" by 1,500 daily newspapers.

simon asked "What I don't understand - and this goes for the NYT's now-defunct wall as well - is why an organization that lives or dies by being read and taken seriously would want to be taken less seriously and read less often."

Every AP reporter is bad? Every AP story is wrong?No, no. Would that that were true! Pravda was simpler to decipher because it was false in a reliable manner. Some folks became quite adept at reading between the lines.

The AP problem is far more difficult. Some of the stories are entirely false, or mostly false, or mostly true, or entirely true.

I was referring to ones you may see from its economics writer, Jeanine Aversa, or those with a byline from Ms. Pickler too. And I say that because they gin up a ton of ideological slant and don't just bring purely wrong reporting.

I am not including those AP reports without a byline such as " it rained a lot in Iowa lately" UNLESS the AP writer tried to assign blame for the rain.

The point is that the brand, by itself, is untrustworthy. If you see "AP" on the story, you don't know anything about the value of what's inside.

Both AP and Reuters have severely damaged their credibility in recent years, and for those not interested in tracking bylines and keeping a log of what's what, it's easier just to note the brand and skip the story.

Keep in mind that Fair Use is essentially an affirmative defense against copyright infringement. That means that you need infringement first, and then Fair Use to overcome it.

What that means is that copyright holders have absolutely zero control over what is or is not Fair Use, except to the extent that they implicitly license material, and that material is thus not infringed, and thereby not subject to Fair Use as a defense (since it is legal to use it already).

So, any time that you hear of copyright holders trying to dictate Fair Use usage of their matter, what they are really doing most often is either trying to intimidate people into not using it, regardless of Fair Use, or likely granting licenses to its use.

Reading the article, I was struck by the AP's concentration on just one of the four Fair Use criteria, that of the substantiality of the copying. In particular, in the case of the Drudge Retort, it totally ignored that the use was likely commentary, criticism, and humor. Another ignored factor was whether or not the usage was commercial. Indeed, for quite awhile, the prevailing understanding was that this later factor often far outweighed the other three factors, and it was only recently that courts really started looking again at those other three.

Moose, you seem to not be understanding what you read. There is plenty of room for for-profit Fair Use, as described in that very Wikipedia article.

Commercial nature is only considered as part of the purpose-or-character test, not definitive. To quote:

"More important is whether the use fulfills any of the "preamble purposes" also mentioned in the legislation above, as these have been interpreted as paradigmatically "transformative."

Those uses are "criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research". Blogs are usually doing criticism, comment, or news reporting, so they generally have a relatively strong claim here.

The second test is the nature of the work, which usually means publicly published matter and purely factual matter has less protection than in other cases. So, again, AP articles, which tend to be public and factual, tend to be weakly protected under this prong.

The third is amount and substantiality. This is what the AP is focusing on. In my opinion, blogs have a tendency to overquote, which makes this one of their weakest areas; however, it is not on its own definitive any more than the other three tests. The AP cannot sit down and declare there is an absolute limit on the length of a passage that can be quoted, because the law does not acknowledge any such lengths. It is possible to quote an entire work and still be fair use; it is possible to quote a small part and violate fair use.

The fourth is the effect on the value of the work. Does the blog's use affect the market for the original negatively? And that depends on how its done, doesn't it?